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 Abstract

Excerpted From: Margaret Olson and Ivy Telles, The Road to Solutions: Systemic Racism and Implicit Bias in Prosecution, 34-APR Utah Bar Journal 25 (March/April 2021) (Full Document)

This article explores an uncomfortable topic. Not least among the incredible events of 2020, our country and our state saw an outpouring of outrage, protest, and even violence in the aftermath of the murder of George Floyd, Ahmaud Arbery, Breonna Taylor, and others. The undersigned authors, like many, tried to stay quiet and do some listening. To understand. To rethink all we previously believed and open the commonly accepted narrative to new information and perspectives. We have endeavored to listen with humility to the pain, suffering, and loss our communities of color continue to endure.

It's easy to resort to defensiveness. To be a racist is a bad thing. No one wants to think of him or herself as a racist. We throw up the usual defense mechanisms: I was raised better than that. I have BIPOC friends. I don't see color. Now, we humbly attempt to set these impulses aside and start down a difficult road to solutions.

As prosecutors, we believe we have both an opportunity and a responsibility to start this conversation and shine light on the criminal justice system's role in these problems. We must name it. We must identify areas in which prosecutors are part of the problem. As professionals who have devoted our careers to the criminal justice system, we must be willing to examine our current and historical roles in institutionalized racism, not rush to justify them. We offer the following thoughts about how prosecutors can be part of the solution in this dawning era.

First, we must acknowledge and combat unconscious bias within ourselves. What are our implicit biases? What experiences have we had with people that have influenced how we see, react, respond, or deal with a situation? What is our mindset? How are we approaching the day?

Second, have we, as prosecutors, failed to challenge a judge, police officer, or co-worker for fear of risking the relationship? Have we failed to follow up invidious examples of bias and discrimination because we were not personally involved? How many missed opportunities for training and meaningful discussion have been lost because we mind our own business and “stay in our lane”? How many times have we failed to critically examine new information presented by defense counsel because [fill in 100 reasons here]. Have we sat, silent, at counsel table while an unrepresented person of color was treated differently?

These are hard questions, but we must ask them. We must reflect upon and take responsibility for our honest answers. We must commit to heightened standards for ourselves, now.

Third, we must combat institutional racism inside a broken system. We need to be ready to have the uncomfortable and potentially ugly conversations with our partners in the justice system, identify where the system is failing and what actions we can take to counter those failures. One crucial component in this is to better fund indigent criminal defense. Our able opponents on the other side of the courtroom should have comparable salaries, benefits, job security, and investigator/expert resources as we prosecutors do. Next, we must actively cultivate more diversity in prosecutor offices. Law school admissions deans and the legal community should encourage this as well. An informal canvas of this state's prosecutors reveals very few persons of color working as prosecutors and almost none in positions of leadership in the prosecution community. The same observation goes for Utah's judiciary. It is no wonder people of color are distrustful of a system that has, despite lofty ideals, failed to serve or represent entire communities and demographics. Very few attorneys administering justice understand or empathize with the harsh reality communities of color face upon entering the justice system. We must commit to fulfill the ideal of Justice For All, now.

Fourth, we need to create a safe space in the courtroom for raising these real issues. Everyone in the courtroom should be free to be anti-racist, not “color blind,” and to shine a light on unconscious bias or racial inequities without the fear of backlash. Raising fundamental fairness issues must be normalized in our profession. Instead of meeting such difficult moments with defensiveness and denial, let us learn to pause, reflect, and course correct. We must commit to a better standard of being open and direct on this issue, now.

Lastly, we need to look outward. Justice is bigger than the single dimension of prosecution. It will take more than what prosecutors can do alone. We need our local and state governments, law enforcement agencies, partners in defense, and many other social services to help battle the systemic issues and racial disparities we see in the justice system. When truly seeking justice, prosecutors and defense attorneys are not inherently at odds. Justice comes in many different forms and always must be considered on a case-by-case basis. A prosecutor's job is not to convict. We are ministers of justice and protectors of the community: the whole community. We as prosecutors should be looking for racial disparities at every stage of a case. We should confront law enforcement officers with apparent prejudices and biases when we see them. If, upon case review, a citizen's constitutional rights have been violated, prosecutors must decline to file, explain why, conduct further training, and close the loop with command staff. When law enforcement officers fail to police themselves on issues of race, the next line of defense is prosecutors. When we fail, we leave it to defense attorneys, who already have a difficult job in the many roles they play for their clients. We add to their workload by failing to do our part in screening out bad stops and searches and cases that hint towards racial bias. We must commit to a better standard of prosecution, now.

Summit County is small (~41,000 residents). Our prosecution team is very close and committed to excellence. We have not had any officer involved critical incidents during our tenure and have not experienced large scale race-based conflict, but this is in large part because we do not have large minority populations (.7% African American and an admittedly underreported 12.4% Hispanic). Our law enforcement partners are among the finest and most professional in the country and we are proud to say that they are committed to doing the hard work of embarking on this journey of critical self-examination with us. As enforcers of the law, we must partner with law enforcement to recognize this movement as an opportunity for training and improvement. We recognize now more than ever that we must work harder to level the field when it comes to racial disparities in our justice system the same way our office has endeavored to level the field with the wealth and power disparities in the justice system. While our office prides itself on “taking out its own trash,” and not filing cases in which there are obvious evidentiary problems, unlawful stops, or illegal searches, we recognize that there is room for improvement. We will examine all use-of-force cases with heightened scrutiny prior to filing. We have instructed our office paralegals not to enter the race of any suspect, witness, or complainant until after a case is closed, and only then for data-gathering purposes. Since this national racial reckoning began, our office has canvassed our own prior case dispositions to account for unconscious bias, potential police misconduct, and racial injustice. It cannot be a task that will be completed quickly if we are to undertake this issue with the seriousness that the moment demands. As we continue to listen and grow in understanding, our office commits to redefining equity and justice in America.

[. . .]

We are here to get it right, not to be right. We commit to listening and to being part of the accountability and change America has so long needed and for which communities of color have so long been deprived. We invite our fellow prosecutors (and fellow lawyers) to join this commitment.

MARGARET OLSON Summit County Attorney. She practices in the Silver Summit Courthouse in Park City.

IVY TELLES is a Summit County Prosecuting Attorney.

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